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Rajasthan High Court
Chhangani, J.
Dalchand - Appellant
Versus
State - Respondents
S.B. Cr. Revision No. 258 of 1963
Decided On : August 27, 1964
No-doubt, the primary determining factor is the nature of actual user but it must be added that the meaning of the expression should not be over stretched by unduly emphasising the actual user. A distinction must be drawn between what may be considered an ordinary and normal use than between a casual and an abnormal use and regard must be had not only to the actual user but also to the normal adaptability of the building to the purpose for which it was put to use as also to the general notions and habits of the people in relation to residence. Further, the expression "building" for custody of property" a distinction ought to be drawn between the word "custody" and the word "keeping". The word custody, is undoubtedly different from the word "keeping" and it implies a sense of security which would be wanting in the case of a shed, which is only meant to provide shelter from sun and rain and which has no doors etc.
Thus the question whether a particular building is used as a human dwelling or as a place for the custody of the property, cannot be determined on rigid and inflexible formula, but must be considered and determined after due consideration of the nature, user of the structure as also the normal adaptability of the property to a particular use as also the general notions of the people in relation to residence and custody of property. (Para 8)
It is difficult to accept an extreme view that every outer verandah is necessarily a building house used as human dwelling or as a place for the custody of the property. Similarly, the other extreme view that an outer verandah can never be such a building, cannot also be accepted. The question whether a particular outer verandah answers the requirement of sec. 442 should determined on the general considerations above with due regard to the actual user of the veranda as also its adaptability to user for residence or custody of property having due regard to the general notions of the people in relation to residence and custody of the property. (Para 12)
Based on the provided legal document, here are the key points regarding the case of Dalchand vs. State:
Case Overview * This is a criminal revision filed by Dalchand (Appellant) against the judgment and order of the Additional Sessions Judge, Jhalawar, which maintained his conviction under Sections 452 and 323 of the Indian Penal Code (IPC). (!) * The petitioner was originally convicted by the Munsif Magistrate for offences under Sections 452 and 323 IPC, involving house trespass and voluntary causing of hurt. (!) * The Additional Sessions Judge modified the sentences, setting aside the fine under Section 452 and altering the sentence under Section 323 to a fine of Rs. 100/- with one month imprisonment in default. (!)
Facts of the Case * The petitioner, along with four others (Gorilal, Daulatram, Tulsiram, and Parmanand), are members of one family. (!) * The complainant, Ridhkaran, leased a shop belonging to the accused and installed a floor-mill and oil extraction machine there. (!) * The complainant also constructed a tin shed on open land purchased towards the north of the shop, with doors from the shop opening into the shed. (!) * A dispute arose when the accused attempted to obstruct the complainant's way by collecting stones, leading to a sudden fight where the petitioner inflicted injuries on the complainant using a salia of a cart. (!) * The police registered a case under Sections 147, 341, and 452 IPC. (!) * The Additional Sessions Judge acquitted the other co-accused but maintained the petitioner's conviction with modified sentences. (!)
Legal Arguments and Court's Reasoning * Preparation for Hurt (Section 452): The court held that there must be clear evidence of preparation for causing hurt to sustain a conviction under Section 452. Since the fight was sudden and arose from a protest against stone collection, it was difficult to infer preparation, making the conviction under Section 452 unsustainable on this ground alone. (!) * Definition of "Building" and "Human Dwelling" (Section 442): The core issue was whether the tin shed constituted a "building used as a human dwelling or as a place for the custody of property." (!) * The court rejected the rigid definition of a building as merely an enclosure of brick or stone-work, noting that the meaning varies based on local habits and notions. (!) * It was established that "custody" implies a sense of security lacking in a simple shed meant only for shelter from sun and rain without doors. (!) * Regarding outer verandahs, the court ruled that they are not automatically considered buildings used for dwelling or custody; each case must be decided on facts regarding actual user, adaptability, and general notions. (!) * Application to the Tin Shed: * The tin shed was open from three sides and bounded only on the fourth side by the shop. (!) * There was no evidence that the accused consented to amalgamate the open space with the shop to make it an integral part. (!) * The complainant's use of the shed as an office (sitting on a slab) was deemed casual and abnormal, not sufficient to classify it as a human dwelling. (!) * Keeping a boiler in the shed did not establish it as a place for the "safe custody" of property. (!) * Conclusion on Trespass: Since the tin shed did not satisfy the requirements of Section 442 (building used for dwelling/custody), the conviction under Section 452 was set aside. However, the ingredients of simple criminal trespass were satisfied, warranting a conviction under Section 447 IPC. (!)
Final Judgment * The revision was partially accepted. (!) * The conviction under Section 452 IPC was set aside, and the petitioner was convicted under Section 447 IPC instead. (!) * The sentence under Section 447 IPC was fixed at a fine of Rs. 50/-, with one month imprisonment in default if the fine was not paid. (!) * The conviction and sentence under Section 323 IPC were maintained as decided by the Additional Sessions Judge. (!)
2. The facts giving rise to the prosecution of the petitioner and four other persons, namely, Gorilal, Daulatram, Parmanand and Tulsiram,are briefly these—
3. The petitioner Dalchand and the co-accused Gorilal and Daulatram are real brothers. The other two accused Tulsiram and Parmanand ate the sons of accused Gorilal. Thus all the five accused are members of one family. The complainant Ridhkaran obtained a lease of a shop belonging to the accused in village Bakani. The complainant installed one floor-mill and a machine for extracting oil in the shop. The complainant also is alleged to have purchased some open land towards the north of the shop and constructed a tin shed on the open place. Two doors of the shop in lease were opened in the tin shed, by the complainant. The complainants case was that the accused wanted the complainant to vacate the shop but he declined to do so. Therefore, the accused adopted wrong methods to secure the vacant possession of the shop. According to him, on 10th May, 1961 the accused collected stones for purposes of construction and thereby obstructed the way to the shop occupied by the complainant. The complainant objected to the collection of the stone by the accused, whereupon the accused entered the tin shed and attacked him. According to the complainant, Dalchand the petitioner took a salia of the car and inflicted injuries upon him, The matter was reported to the Police Station, Bakani and the police registered a case under secs. 147, 341 and 452 Indian Penal Code and started investigation. After investigation the police challenged five persons including the petitioner in the court of the Munsif Magistrate, Jhalawar. The Munsif Magistrate acquitted Parmanand. He convicted the petitioner Dalchand under secs. 452 and 323, Indian Penal Code. Gorilal and Daulatram were convicted under sec. 448, Indian Penal Code and were awarded two months rigorous imprisonment. Tulsiram was also convicted under sec. 448 but was released in accordance with sec. 6 of the Probation of Offenders Act. Dalchand, Gorilal and Daulatram filed a joint appeal in the court of Additional Sessions Judge, Jhalawar. The Additional Sessions Judge, Jhalawar, acquitted Gorilal and Daulatram but maintained the convictions of the petitioner with modification of sentences as indicated above.
4. Mr. Kasaliwal, appearing for the petitioner, in the first instance, challenged the concurrent findings of facts arrived at by the courts below with regard to the petitioner. After considering the relevant portions of the record and examining the judgments of the two courts below, I have no hesitation in coming to the conclusion that there is sufficient evidence to justify the findings of facts arrived at by the courts below. No case for re-appraisement of the evidence in revision has been made out. The courts below were right in accepting substantially the prosecution case.
5. The main submission on behalf of the petitioner is that even on the facts of the case as held proved, his conviction under sec. 452 Indi
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